Confusion on column 5
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Traffic areas are interpreting
on and off duty in different ways by a CM staff reporter
• There is nationwide confusion over the new drivers' record books which came into operation on March 1. In particular, column 5 "Statutory breaks on duty" is being interpreted in a number of different ways by both enforcement officers and operators around the country.
In the North Western traffic area, we understand, enforcement officers are treating the statutory 30-minute rest and refreshment break after 5+ hours' duty as being on duty. Longer breaks of, say, one hour, apart from the refreshment break are considered by them to be statutory breaks off duty.
A member of the North Western enforcement staff told CM: "We are all struggling to interpret the new regulations. There are a number of anomalies which we are trying to iron out and I would expect this would take some time. I expect the Ministry will issue an explanatory memorandum, probably in the month of June."
The Scottish traffic area takes the view that if the man is in the cab of his vehicle then he is on duty. In such circumstances he is considered to be in charge of the vehicle even though he may be having his lunch.
Operators in the Northern traffic area said that they had been told by the.Ministry locally that time spent loading or off-loading the vehicle had to be included as a statutory break, on duty. A South Wales enforcement officer said that such an entry in column 5 in his area could lead to a prosecution.
The confusion in the minds of the operators centres around whether or not the record sheet refers to a statutory break from work or driving. A head office spokesman for the Ministry of Transport registered surprise at the confusion, and said: "Quite clearly, the statutory break refers to duty, and duty includes both driving time and working time."
However, the operators are unable to decide just when a man is on duty and, clearly, so are some of the traffic area enforcement staffs.
The West Midlands traffic area was not prepared to commit itself to CM on this matter, saying "This is a definition which can only be clarified as a result of a test case."
The Eastern area takes the view that the man is off duty only when he is away from the vehicle—but the Metropolitan enforcement section spokesman pointed out that a man could still be responsible for his vehicle and its load although sitting in a transport cafe with the vehicle parked outside.
One operator reports that an enforcement officer accompanied by a police officer examined the journey record sheet and demanded to know what the driver had been engaged on in the periods when he was not driving. There is no statutory requirement for a driver to show how he spends time on duty other than driving time. In the South Eastern traffic area the enforcement section takes a similar line to South Wales, where working time is not entered in column 5.
Ministry views Although the Ministry cannot interpret its own legislation, it did foresee the possible confusion which might arise, and therefore offered guidance in writing on some aspects of the new legislation before it came into effect. For example, in the G12 memorandum issued by the Ministry as a simple guide to drivers' hours and records, it is made clear that the refreshment break may or may not be "on duty", according to circumstances.
The paragraph 7 reference in the G12 booklet gives as an example the case of a driver who "during a break from work, including a break which he takes to obtain rest and refreshment, under conditions which require him to remain on or near his vehicle or still to be responsible for its load" may by regarded as on duty. And in paragraph 8 of G12 the Ministry states that an employee-driver may be regarded as off duty "during intervals in his working day, including intervals for rest and refreshment, so long as he does not continue to have duties to perform in relation to his employer's business, e.g. to safeguard his vehicle or its load".
This seems a commonsense view; and it would certainly not seem reasonable to assume that because a driver takes his half-hour break in his cab he is necessarily on duty. For instance, if a driver's 5+-hour duty period expired when he was on a country road on a pouring wet
day, he would obyiously elect to have his tea and sandwiches in the cab rather than outside. But this would, one feels, be his own free choice, and the fact that his presence acted as a deterrent to the vehicle being stolen would be quite incidental. Having his refreshment and reading the paper, he would not be "under the directions of his employer" unless he had previously been specifically instructed to take his breaks in the cab to keep the vehicle secure. Then he could be regarded as being on duty.
The Ministry, in a letter written in December last year, made it clear that "rest" did not itself imply being off duty; this would be determined by circumstance. Wrote an MoT official on that occasion: "It would seem perfectly possible for a driver to remain on duty while being able to take rest and refreshment, and indeed section 96(2) of the 1968 Act envisages this possibility when it refers to a driver being on duty for 51 hours when 'there has not been during that period' an interval for rest."
It followed, wrote the Ministry, "that many, though unquestionably not all, intervals for rest and refreshment should be entered in column 5 of the new record sheets—`Statutory breaks—On duty'" In paragraph 42 of its G12 explanatory memorandum the Ministry is even more explicit. This states that: "If, although able to take rest and refreshment, an employee-driver remains on duty during his statutory break the break must be recorded in column 5. If he is off duty during his statutory break, the break must be recorded in column 6. Any other periods off duty during the working day must also be entered in column 6."
Keeping the key One traffic area office suggested that it might interpret the question of on or off duty according to whether the driver had his ignition or cab door key—if he had the key he was "in chargeand therefore, in their view "on duty".
But this, too, falls down on commonsense grounds: many drivers habitually park their vehicles overnight near their homes and keep the key with them all night—but they cannot reasonably be regarded as being on duty in such circumstances. The same argument would apply if a driver had been told to sign himself off at some distant point and leave the vehicle for a couple of hours, in order to get enough off-duty time to cover a full 121-hour spreadover; he would lock the cab and keep the key, but might be miles away from the vehicle during that break, and could not reasonably be regarded as on duty.
Hours problems
Meanwhile, the new hours themselves are causing early problems. For example, in Scotland where the first of the big spring stock auctions have just begun, cattle have had to be held in pens for several days because the lorry drivers who brought them to market were unable to take them away after the sales because of waiting time which counted as duty time. Farmers, hauliers and auctioneers fear a chaotic situation developing as the big stock sales get under way.
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